The only partible property is the residential house with the appurtenant land. The Advocate Commissioner has reported that the property cannot be divided and the sharers alloted property in specie. The final decree court therefore auctioned the property amongst the sharers.
2. The appellant did participate in the auction amongst the sharers. The property has now been bid in auction by the plaintiff and defendants 1 to 4. An attempt to set aside the auction sale under Order XXI Rule 90 of the Code of Civil Procedure also failed. The course adopted by the final decree court cannot be faulted with. The only option was to sell the property amongst the sharers when the property is not capable of division by metes and bounds. I do not find any substantial question of law in this regular second appeal.
3. However, the appellant is granted time till 31.01.2015 to vacate the premises. This shall be done on the appellant filing an undertaking to vacate the premises in the R.S.A. No. 1238 of 2014 2 execution court. The affidavit of undertaking shall be filed within two weeks from today.
The regular second appeal is dismissed subject to the above reservation.
V.CHITAMBARESH JUDGE DCS